March 02, 2009

St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment

More than two hundred
years after the publication of his influential edition of Blackstone’s Commentaries, St. George Tucker, the distinguished
Jeffersonian jurist, is at the center of controversy.Gun-rights advocates claim Tucker as their
spiritual forebear, but opponents of this view argue that Tucker’s
interpretation of the Second Amendment[1]
can not be pressed into service in the modern gun debate without doing great
violence to his thinking.The stakes in
this intellectual debate have been raised in the wake of the Supreme Court’s
historic decision in District of Columbia
v. Heller.[2]In that decision, two very different
interpretations of Tucker’s views of the Second Amendment were set out.Justice Scalia adopted the gun-rights view of
Tucker and Justice Stevens took the opposing view. One of the central points of
contention in this modern debate over Tucker arises from the learned judge’s
earliest discussion of the Second Amendment in his unpublished law lectures.[3]

In his essay on Tucker’s
lectures, David Hardy claims that Tucker believed that the Second Amendment
enshrined a private right of individual self-defense in the Constitution.[4]This individual-rights view of the Second Amendment was recently
affirmed in Justice Scalia’s majority opinion in Heller.[5]Although one might have expected gun-rights
advocates to accept their victory graciously, Hardy and others have been quite
critical of the Heller dissents.[6]In particular, Hardy takes issue with Justice
Stevens’s use of a passage from Tucker’s law lectures.[7]Tucker argues in that text that the Second Amendment was adopted by the
First Congress in response to fears about federal military power.In an article in a special issue of the William and Mary LawReview commemorating Tucker’s Blackstone, I argued that this passage
sheds new light on the meaning of his description of the Second Amendment as
the “palladium of liberty.”[8]Hardy disagrees, but his argument is
unconvincing.He correctly notes that
this phrase appears in both the law lectures and Tucker’s published View of the Constitution.[9]The real questions, however, are what did
Tucker mean when he described the Second Amendment as the “palladium of liberty,”
and how does this passage relate to the one quoted by Stevens?[10]Curiously, Hardy does not include the passage cited by Stevens in his
article.But if one compares the text
quoted by Stevens with the one Hardy cites in his article and reads both
passages in light of the Founding era’s own rules for interpreting constitutional
texts, it is clear that Tucker’s views do not support either Hardy or the Heller majority, but instead support the
interpretation of Justice Stevens.Here
are the two discussions of the meaning of the Second Amendment that appear in
Tucker’s law lectures, placed side by side for comparison:

Table 1: Comparison of Passages

Passage quoted by Justice Stevens in Heller

Passage quoted by Hardy in the Northwestern University Law Review Colloquy

If a State chooses to incur
the expence of putting arms into the Hands of its own Citizens for their defense,
it would require no small ingenuity to prove that they have no right to do it,
or that it could by any means contravene the Authority of the federal
Govt.It may be alleged indeed that
this might be done for the purpose of resisting the Laws of the federal
Government, or of shaking off the Union: to which the plainest answer seems
to be, that whenever the States think proper to adopt either of these measures,
they will not be with-held by the fear of infringing any of the powers of the
federal Government.But to contend
that such a power would be dangerous for the reasons above-mentioned, would
be subversive of every principle of Freedom in our Government; of which the
first Congress appears to have been sensible by proposing an Amendment to the
Constitution, which has since been ratified and has become a part of it,
viz.“That a well regulated militia being
necessary to the Security of a free State, the right of the people to keep
& bear Arms shall not be infringed.”To this we may add that this power of arming the militia, is not one
of those prohibited to the States by the Constitution, and, consequently, is
reserved to them under the twelfth article of the ratified Aments.[11]

The right of the people
to keep and bear arms shall not be infringed—this may be considered as the
palladium of liberty.The right of
self defense is the first law of nature. In most governments it has been the study of
rulers to abridge this right with the narrowest limits.Where ever standing armies are kept up
& the right of the people to bear arms is by any means or under any
colour what-soever prohibited, liberty, if not already annihilated is in
danger of being so.—In England the people have been disarmed under the specious
pretext of preserving the game.By
the alluring idea, the landed aristocracy have been brought to side with the
Court in a measure evidently calculated to check the effect of any ferment
which the measures of government may produce in the minds of the people.——The
Game laws are a [consolation?] for the government, a rattle for the gentry,
and a rack for the nation.

[Tucker note: In England
the right of the people to bear arms is confined to protestants—and by the
terms suitable to their condition & degree, the effect of the Declaration
is entirely done away. Vi: Stat. 1 W & M l:2 c. 2.][12]

According to Justice
Stevens, “Tucker suggested that the Amendment should be understood in the
context of the compromise over military power represented by the original
Constitution and the Second and Tenth Amendments.”[13]Hardy denies that the passage discussed by
Stevens is really about the Second Amendment,[14]
a claim that is difficult to reconcile with the fact that the passage expressly
states that the Second Amendment was adopted to protect the state militias.

I. New Originalism vs. Blackstonianism: Original Meaning
or Original Intent

To understand Hardy’s
interpretive error one must look at his originalist method.Hardy clearly endorses Randy Barnett’s and
Justice Scalia’s new originalism, a theory of constitutional interpretation
that eschews the intent of the Framers and instead focuses on something called “original
public meaning.”[15]There are several problems with this method.
First, it is inconsistent with the dominant modes of constitutional
interpretation familiar to the Founders, which were largely focused on
establishing intent.[16]Second, the new method lacks any clear rules
or methodology.The Heller majority employed an eclectic assortment of interpretive
practices from different moments in American history.It is hard to see how one can claim to be an
originalist if one rejects the Founders’ interpretive techniques and
substitutes in their place modes of analysis developed decades after the
adoption of the Constitution.[17]

It is not surprising
that new originalism has been attacked by legal scholars from across the
contemporary political spectrum.Conservative judge Richard Posner has denounced the method as a form of “faux
originalism.”[18]Posner correctly insists that a genuine originalist method must adhere
to the Founders’ interpretive rules.Scholars on the left have also faulted the Heller decision for its bizarre methodology.For example, Reva Siegel notes the “temporal
oddities” of the opinion, which invokes the public meaning at the time of the
Founding, but relies heavily on evidence drawn from the nineteenth century for
support.[19]Scalia and other new originalists seem
unaware of, or unconcerned with, the profound changes thattransformed American law in the period
between the Founding era and the Jacksonian period.

Justice Stevens, by contrast, uses orthodox
eighteenth century Blackstonian methods.[20]This approach may not meet all of the
requirements of scholarly history, but it is a much better approximation of
what originalism ought to look like, at least if one is interested in the
constitutional ideas of Tucker, who clearly owed a great intellectual debt to
Blackstone.[21]One of the many problems with new originalism
is that it ignores the interpretive pluralism of the Founding era.There was no single originalist method favored
by the Founders.Federalists and Anti-Federalists
were deeply divided over interpretive methodology.[22]Indeed, rather than
represent a neutral method of constitutional interpretation, the best that any
version of originalism could ever hope to achieve would be to force us to
choose sides among the different interpretive methods favored by the Founders
themselves.Still, because the issue
raised by Hardy’s essay is how to interpret Tucker, we need to use Tucker’s
method, and that method was grounded in Blackstone.

What does orthodox
Blackstonian method entail?Although
Blackstonian method may share with new originalism an interest in establishing
the original public meaning at the time of the Founding, this type of analysis
is merely the first step in a multistage process of interpretation.Blackstone summarizes his method as follows:

The fairest and most rational method to
interpret the will of the legislator, is by exploring his intentions at the
time when the law was made, by signs
the most natural and probable.And these
signs are either the words, the context, the subject matter, the effects and
consequence, or the spirit and reason of the law.[23]

The Blackstonian method supports an intentionalist model,
not Barnett’s and Scalia’s new originalism.Blackstone underscores the intentionalist focus of this method in the
last rule by noting that “the most universal
and effectual way of discovering the true meaning of a law” is to inquire into “the
reason and spirit of it; or the cause which moved the legislator to enact it.”[24]This rule was
sometimes described by contemporaries of Tucker as a search for the evil to be
remedied.[25]

II. Reading Tucker’s Law Lectures from a Blackstonian
Perspective

Taking Blackstone’s rules about the “spirit and reason” of
the law as a guide, consider the first passage discussing the Second Amendment
in the table above.Hardy’s claim that
this passage is about the militia clauses and not the Second Amendment is
obviously inconsistent with Blackstone’s injunction that the meaning of a legal
and constitutional text is to be gleaned from the intent of its authors.It is clear that Tucker believed that the
intent of the First Congress in adopting the Second Amendment was to deal with
the danger posed by Article I, Section 8, of the Constitution.This is precisely the claim made by Stevens
that Hardy criticizes.[26]

Turning to the other passage that Hardy believes holds the
true secret to Tucker’s views on the Second Amendment, Blackstonian analysis
also reveals a very different meaning.The passage does describe the Second Amendment as the “palladium of
liberty.”Hardy clearly believes that it
is self-evident that this passage shows that the Second Amendment protected the
natural right of self-defense.Even a
quick glance at the passage, however, ought to raise doubts about this
reading.If one applies Blackstone’s
rules of interpretation to this text, it becomes clear that the passage is not
about a private right of self-defense.The evil Tucker identifies in the passage that needs to be remedied is
exactly the same as the danger mentioned in the other passage from the law
lectures: the threat posed by the powerful standing army created by the
Constitution.

Hardy’s reading of this text ignores the Blackstonian rules
of construction that Tucker esteemed.Consider Tucker’s discussion of the English game laws.Although it is true that the game laws had
been used to effectively disarm the English people, Tucker was well aware that
America had no game laws.Nor was Tucker
worried that America would follow England down this path.The threat to liberty in America was
different.[27]Tucker shared with
Brutus, one of the most theoretically sophisticated Anti-Federalist authors,
the view that the scope of federal power was limited to the “protection
and defence of the community against foreign force and invasion” and to the
equally important role of suppressing “insurrections among ourselves.”[28]All matters related to individual self-defense,
by contrast, fell within the scope of state authority “to provide for the
protection and defence of the citizen against the hand of private violence, and
the wrongs done or attempted by individuals to each other. . . .”[29]Tucker’s discussion of the danger posed by
Federalist policy in the 1790s confirms this view. Tucker did not believe that
disarmament would be done by English-style game laws. Instead, he predicted that it would be
accomplished by using the government’s power to repress insurrection under
Article I, Section 8, and the treason clauses.Rather than focus on the evil Tucker intended to remedy, the danger of a
standing army, Hardy substitutes his own modern gun-rights ideology and its
fears about gun control and the private right of self-defense.Rather than treat Tucker as an eighteenth-century
Jeffersonian Republican,[30] Hardy casts him as an early American
Charlton Heston.[31]

The passage quoted by Hardy is not about private self-defense,
but rather about the political danger posed by a standing army.Tucker made this absolutely clear when he
wrote: “[T]he landed
aristocracy have been brought to side with the Court in a measure evidently
calculated to check the effect of any ferment which the measures of government
may produce in the minds of the people.”[32]The
focus of the text is not on the private use of arms to fend off personal attack,
but instead clearly on the political use of arms in a collective effort to
defend political liberty—a function that the Founders believed was best served
by the “well regulated militia” protected by the Second Amendment. Using Blackstonian
methods to interpret this passage leads to the same conclusion as Justice
Stevens’s dissent.The key to
understanding the Second Amendment is the Founders’ concern about a standing
army.In short, when both of these
passages are read using Tucker’s own Blackstonian method, it is clear that they
both point in the same direction: the evil the Second Amendment was intended to
remedy was the threat of a standing army, not a potential threat to the common
law right of self-defense.

Tucker does briefly mention that “[t]he right of self defense is the first law
of nature.”[33]Hardy has misinterpreted this claim as well.The quotation does not explain the meaning of
the Second Amendment.Rather, it simply
restates a truism of eighteenth-century political and constitutional theory:
prior to entering civil society individuals had an absolute right of self-defense.Hardy fails to take note of Blackstone’s
discussion of the different meanings of the right of self-defense in the Commentaries.In essence, Hardy conflates the natural right
of self-defense, the common law right of self-defense, and the constitutional
right to keep and bear arms.Most
Americans in the Founding era, including Tucker, recognized that leaving the
state of nature required trading the almost limitless natural right of self-defense
for the far more limited common law right of self-defense.Here is how one eighteenth-century American
writer summarized the move from the state of nature to civil society:

1st. The power that every one has in a state of nature to do whatever
he judgeth fit, for the preservation of his person and property and that of
others also, within the permission of the law of nature, he gives up to be
regulated by laws made by the society, so far forth as the preservation of
himself (his person and property) and the rest of that society shall require.

And 2nd. The power of punishing he wholly gives up, and engages his
natural force (which he might before employ in the execution of the law of
nature by his own single authority as he thought fit) to assist the executive
power of the society as the law thereof shall require.[34]

In his Commentaries, Blackstone
discussed two concepts of self-defense: the 5th Auxiliary right and the common
law right of self-defense.[35]The
former, a political or civic right, was embodied in the English Bill of Rights.[36]The
language of this provision protects the right of Protestants to have arms
suitable to their condition as allowed by law.When the very same Parliament considered allowing individuals to have
arms for self-defense within their homes, they rejected this proposal.[37]Given Blackstone’s and Tucker’s strong support for the rule of in pari materia,[38]
and Tucker’s own analysis of the anemic nature of the English right to have
arms articulated in the very same text quoted by Hardy, it seems clear that
Tucker did not believe that the English right was very robust.

Ironically, Hardy’s
essay may well end up providing critics of Heller
with some of their best historical ammunition.Scalia’s decision in Heller
rests much of its authority on the claim that the Second Amendment protected a
preexisting right that the English Bill of Rights had established.[39]Yet, if one looks closely at Tucker’s discussion
of the nature of that right, it is absolutely clear that Tucker did not see the
robust right described by Scalia, but rather viewed this right as almost
nonexistent.Tucker believed that “[i]n England the right of the people to bear
arms is confined to protestants—and by the terms suitable to their condition
& degree, the effect of the Declaration is entirely done away.”[40]At a very minimum, the material Hardy
cites in his article provides strong evidence that Tucker did not share Scalia’s
view of the English Bill of Rights.

Heller’s conclusion that the Second Amendment was meant
to provide federal protection for either the natural right of self-defense or
the common law right of self-defense rests on another misunderstanding.The common law right of self-defense was
distinct from and more limited than the natural right of self-defense.Individuals were allowed to use deadly force
if, and only if, retreat was impossible.In the footnote annotations in his treatise on Blackstone, Tucker notes
that the 5th Auxiliary right was essentially civic and public in character and
was part of the genealogy of the Second Amendment.[41]The
annotations of the common law right of private self-defense, by contrast, do
not mention the Second Amendment, but rather cite to the standard English
treatises on common law and crime.Hardy’s
misreading of Tucker results from his erroneous tendency to conflate and collapse
into a single right three very different conceptions of self-defense: the
natural right of self-defense, the common law right of self-defense, and the constitutional
right to keep and bear arms.

To illustrate the differences between these
different legal conceptions of self-defense one need only consider the very
different ways in which these rights were understood to legally impact men,
women, and African-American slaves in Tucker’s Virginia.In the state of nature all of these groups
enjoyed an absolute right to use whatever force necessary to defend
themselves.The common law in Virginia,
as revised by statute, did not protect an untrammeled right of self-defense for
any of these groups.Men and women each
enjoyed a limited right of self-defense that required them to retreat to the
wall before responding with deadly force.African-American slaves had an even more limited right.As Tucker himself noted regarding the
situation of African Americans in his own state: “[I]t will appear that
not only the right of property, and the right of personal liberty, but even the
right of personal security, has been, at times, either wholly annihilated, or
reduced to a shadow. . . .”[42]The right to bear arms in Virginia was also
not universal: women were excluded and so were slaves.The situation of free blacks was especially
complicated because they occupied a hazy legal netherworld between freedom and
slavery.Tucker noted that “[f]ree
negroes and mulattoes” were constitutionally prohibited from “serving in the
militia, except as drummers or pioneers, but now I presume they are enrolled in
the lists of those who bear arms, though formerly punishable for presuming to
appear at muster-field.”[43]

Tucker’s use of the
term “bear arms” in this context merits closer attention.In Tucker’s writing, this term was not
synonymous with bearing or carrying a gun.Indeed, Tucker noted the restrictions on free blacks in his
analysis.Under state law “[a]ll but
house-keepers, and persons residing upon the frontiers are prohibited from
keeping, or carrying any gun, powder, shot, club, or other weapon offensive or
defensive. . . .”[44]There was a clear difference in his mind
between keeping and carrying a gun and keeping and bearing arms.Tucker’s use of the term “bear arms” does not
lend much support to the notion that this term was commonly used to signify the
use of guns in a civilian context.Recall that according to Blackstone, “[w]ords
are generally to be understood in their usual and most known signification; not
so much regarding the propriety of grammar, as their general and popular use.”[45]Scalia’s
opinion in Heller relies uncritically
on the findings of an article published in a Federalist Society-sponsored law review
that purports to show that the term “bear arms” was frequently used in a
nonmilitary sense in the Founding era.[46]Yet, if one examines the footnotes to this essay it becomes clear that
there are less than a half dozen examples from the Founding era that support
this claim, and one of those refers to the term “bear a gun,” not “bear arms.”[47]

By contrast, historian
Nathan Kozuskanich identified close to a hundred examples of popular uses of
the term “bear arms” outside of Congress that support the military reading of
this term.[48]If Scalia had applied his own theory
neutrally he should have concluded that the most common use of the term was
military-related.[49]Even if one accepts the flawed scholarship
Scalia cited, including the dubious proposition that both uses of “bear arms”
were common, then the Blackstonian method is clear on how to resolve the disputed
meaning of the term in question: one must consult the preamble.[50]Yet, rather than follow the Founders’
Blackstonian rule, Scalia opportunistically turns to a different set of rules
about preambles invented decades after the Second Amendment was framed.[51]

It is easy to see why
a prominent conservative legal scholar such as Doug Kmiec would be critical of Heller.[52]Rather than vindicate originalist methodology,
Heller shows that originalism has no
ability to constrain judges.A similar
critique was framed by Richard Posner, who notes that Heller proves that one can use originalist methods to justify
almost any conclusion as long as one has enough law clerks to do the research.[53]Indeed, the search for original meaning may
be even more prone to manipulation than the search for original intent.[54]Rather than elevate the doctrine of
originalism to a new level, history may well show that it was Scalia’s decision
in Heller that finally demonstrated
that the originalist emperor has no clothes.

Conclusion

David Hardy is to be
commended for transcribing these sections of St. George Tucker’s law lectures
and making them more widely available.His interpretation of Tucker, however, is more problematic.Tucker’s earliest writings on the Second
Amendment support neither Hardy’s individual-rights views of the Second
Amendment nor the majority opinion in Heller.Tucker’s vision of the Second Amendment is
not consistent with either the modern gun control or gun-rights view of the
Second Amendment.Tucker was a late
eighteenth-century Jeffersonian and his views of the Second Amendment were
crafted in response to the debates of his own day, not our own.

Rather than challenge
Justice Stevens’s reading of the Second Amendment, the passage cited by Hardy
provides even more convincing evidence to support Stevens’s dissent in Heller. Only by ignoring the Founding
era’s own rules of construction and employing a “faux originalist” method can
one arrive at Hardy’s view of the evidence. Indeed, the passage quoted by Hardy
makes it absolutely clear that it was Justice Scalia, not Stevens, who relied uncritically
on flawed, ideologically driven scholarship.

3. See St. George Tucker, Ten Notebooks of
William and Mary Law Lectures 126–29 (unpublished Tucker-Coleman Papers,
located at the Earl Gregg Swem Library at The College of William and Mary)
(copies on file with the Northwestern University Law Review).

4. David
T. Hardy, The Lecture Notes of St. George
Tucker: A Framing Era View of the Bill of Rights, 103 Nw. U. L. Rev. Colloquy 272 (2008),
http://www.law.northwestern.edu/lawreview/colloquy/2008/48/ (link).

5. Heller, 128 S. Ct. at 2799.For earlier articulations of the same view,
see David B. Kopel, The Second Amendment
in the Nineteenth Century, 1998 BYU
L. Rev. 1359 (link), and Glenn
Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 461–62 (1995) (link).

7. Heller, 128 S. Ct. at 2839 n.32
(Stevens, J., dissenting); Hardy, supra note
4, at 278.Hardy’s
article is a classic example of the historical fallacy of argument by
tautology.He claims that because the
phrase “palladium of liberty” appeared in the law lectures and later in
Tucker’s published work, his interpretation of the passage is correct.Such an argument is circular and tells us
nothing about what this phrase meant; it merely tells us that the same phrase
appears in two places.For a discussion
of historical tautologies, see David
Hackett Fischer, Historians’ Fallacies: Toward a Logic of Historical Thought 31–34
(1970).

8. Saul
Cornell, St. George Tucker and the Second
Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. &
Mary L. Rev. 1123, 1125 (2006).

9. See St.
George Tucker, View of the Constitution of the United States: With Selected
Writings 165 (1999) (link).

10. For
a brief discussion of the various models interpreting the Second Amendment, see
Saul Cornell, A New Paradigm for the
Second Amendment, 22 Law & Hist.
Rev. 161, 161 (2004) (link).

25. Saul
Cornell, The Original Meaning Of Original
Understanding: A Neo-Blackstonian Critique, 67 Md. L. Rev. 150, 152 (2007).In a case dealing with the status of slaves in Pennsylvania after the
states’ gradual emancipation law, for example, the state supreme court applied
this rule of construction by interpreting the law in terms of the evil the
legislature had intended to remedy.See Respublica v. Richards, 2 U.S. (2
Dall.) 224, 226, 1 Yeates 480, 483 (Pa. 1795) (link).

26. Seesupra
text accompanying note 7.Indeed, it
seems hard to reconcile Hardy’s reading of this text with any plausible theory
of constitutional interpretation.Moreover, this text clearly contradicts a central claim of gun-rights advocates
that there is no contemporary evidence from the Founding era to support such a
theory.Gun-rights advocates have also
argued that such a theory leads to absurd results, including the right to take
up arms against the federal government.E.g., Stephen P. Halbrook, To Keep and Bear Their Private Arms: The
Adoption of the Second Amendment, 1787–1791,
10N. Ky. L. Rev.13, 38 (1982) (link).Cf. Glenn Harlan Reynolds &
Don B. Kates, Jr., The Second Amendment
and States’ Rights: A Thought Experiment, 36 Wm. & Mary L. Rev.
1737 (1995)(describing a multitude of absurd consequences of a
states’ rights view) (link).Of course, this was precisely what radical
Jeffersonians came to believe in the 1790s.SeeSaul Cornell, A Well-Regulated Militia: The Founding Fathers and
the Origins of Gun Control in America 75–85 (2006).

27. For
a discussion of Federalist and Anti-Federalist views of the limited scope of
federal power and its relevance to firearms regulation at the state level, see
Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism,
76 Chi.-Kent L. Rev. 103, 111–13
(2000) (link).

30. SeeSt.
George Tucker, 1 Blackstone’s
Commentaries: With Notes of Reference, to the Constitution and Laws of the
Federal Government of the United States and of the Commonwealth of Virginia app.
note D at 289–300 (St. George Tucker ed., Lawbook Exchange, Ltd. 1996) [hereinafter
Tucker’s Blackstone] (1803) (link).

31. On
Heston and gun-rights, see Joan Burbick,
Gun Show Nation: Gun Culture and American
Democracy (2006).

36. On
Blackstone’s view of the difference between these rights, see Steven J. Heyman, Natural Rights and the
Second Amendment,76 Chi.-Kent. L. Rev. 237, 252–260 (2000) (link).

37. Lois
G. Schwoerer, To Hold and Bear Arms: The
English Perspective, 76 Chi.-Kent. L.
Rev. 27, 51 (2000) (link).See generally
id. at 30–58 (discussing the English view on the right to bear arms).

38. 1
Tucker’s Blackstone, supra note 30, at 58 n.1 (“It is an established rule of construction
that statutes in pari materia, or
upon the same subject, must be construed with a reference to each other. . .
.”).

48. Nathan Kozuskanich, Originalism, History, and
the Second Amendment: What Did Bearing Arms Really Mean to the Founders?, 10 U. Pa. J. Const. L. 413 (2008).The use of this term in Congress uniformly
supports the military reading.Once
again an orthodox Blackstonian approach would recognize Blackstone’s injunction
that: “Of the same nature and use is the comparison of a law with other laws,
that are made by the same legislator, that have some affinity with the subject,
or that expressly relate to the same point.”1 Blackstone, supra note 23, at *60.Gun-rights
supporters claim that this tells us nothing because Congress would have been
focused on military issues.See Randy E. Barnett, Was the Right to Keep and Bear Arms
Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 246–48 (2004) (reviewing H. Richard Uviller & William G. Merkel,The Militia and the Right to Arms, or,
How the Second Amendment Fell Silent (2002)).This is precisely the point: the same was
true for the First Congress, which was focused on the threat of Article I,
Section 8.

49. To
support this conclusion, Scalia cites to Cramer &
Olson, supra note 46.If one
tallies the sources cited in that article, however, the problem with the evidence
becomes clear.The first twenty-eight
citations deal mostly with English sources.A reference to the most important digital collection of early American
printed sources understates the uses of “bear arms” within a military context,
missing almost ninety-five such uses.The vast majority of the remaining sources are from the nineteenth century.

50. 1 Blackstone, supra note 23, at *60.On
the importance of preambles to the Second Amendment’s framers, see David Thomas
Konig, The Second Amendment: A Missing
Transatlantic Context for the Historical Meaning of “the Right of the People to
Keep and Bear Arms”, 22 Law& Hist. Rev. 119, 120 (2004) (link).Scalia ignores Blackstone’s discussion of
preambles, while focusing attention on his discussion of the 5th Auxiliary
right, an irony noted by Justice Stevens in his dissent.Heller,
128 S. Ct. at 2838–39 (Stevens, J., dissenting).Scalia relies somewhat uncritically on Eugene
Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev.
793, 814–21
(1998) (link).See
Heller, 128 S. Ct. at 2789 (majority opinion).Yet this article’s thesis and evidence had
been challenged by Konig’s research, which was readily available to the Court
since it was cited by the Brady Center.See Brief for Brady Center et al. as
Amici Curiae Supporting Petitioner at 9 n.3, District of Columbia v. Heller,
128 S. Ct. 2783 (2008) (No. 07-290) (link).

51. For
more problems with Scalia’s use of preambles, see Cornell, supra note 17, at 631–39.

52. Doug
Kmiec, What the Heller? Is Only the
Supreme Court’s Liberty Enhanced?, Slate,
July
8, 2008,
http://www.slate.com/blogs/blogs/convictions/archive/2008/07/08/what-the-heller-is-only-the-supreme-court-s-liberty-enhanced.aspx#
(questioning
Scalia’s “original understanding” interpretation of the Second
Amendment) (link).

54. This
is the conclusion of Richard S. Kay, Original
Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. (forthcoming).Heller
certainly bears out Kay’s fears in this regard, since Scalia’s method is an odd
hodgepodge of techniques all of which seem designed to produce a preordained
result.